Supreme Court Imposes Restrictions on Exercising Miranda Rights

The Supreme Court today ruled that suspects must affirmatively state their intent to remain silent and request a lawyer when being questioned by police in order for statements they make to be suppressed. The court was divided 5 to 4. Justice Sotomayor, in a dissent, wrote:

"Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively, requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."

The case is The case is Berghuis v. Thompkins, 08-1470 and the opinion is here.

if you are questioned by the police as a potential suspect, you say "I want my attorney (or- to have an attorney assigned to me)." And "I invoke my right to silence." Memorize these. Personally, I would be tempted to stick my fingers in my ears and say "Lalala, I can't hear you." I suspect that would not go over well with the police, but then, I've always been rather fond of both civil disobedience and "street theater." {Sigh.} While this does not seem to be a huge deal on the face of it, and Thompkins does not seem to have been the sharpest knife in the drawer (and I would argue that the "duller knives" are the ones most in need of protection), this is just another whittling away of our civil liberties. Perhaps a small nibble in the larger context, but definitely a nibble, nevertheless.

are to be granted only to those educated enough, informed enough, articulate enough, assertive enough and mentally competent enough to invoke them properly and promptly in language that leaves no possible doubt in the cops' minds.

Reminds me of that series of commercials for something that shows an adult cheating one little kid after another, and the voiceover says, "Even a kid knows when something's unfair."

the dynamic. You are in police custody. You have been arrested--which scares the sh*t out of most people....You have been handcuffed. People with guns are saying all kinds of things to you (and the police are allowed to lie.) Whatever you saw on teevee matters not.....

Most people talk to the cops--big mistake that it is....I once asked a 20 yr FBI agent about people not talking to him and he said he never had that problem, so overwhelming was the desire to comply.

It all goes back to the Milgrim experiment. People do what they are told. Especially if your liberty has been taken from you.....It takes a special kind of courage and independence to not talk to the cops....

So, when someone is arrested it is perfectly appropriate to tell them their rights (and that those rights do exist in the real world and not just on tee vee) and to make it easy, not hard, to invoke your Fifth Amendment rights....

The police intimidate and scare most people who are under arrest.....In order to give people permission, and the ability, to exercise their Fifth Amendment rights, some acknowledgement of that reality of intimidation is necessary.

I do understand, narias that english may not be your first language, but for most naitve speakers, who graduated HS, and for many who got through third grade, remain silent, means that you may continue to stay silent. Speaking after being told that you may remain silent is not remaining silent, no matter what comes out of your mouth.

The courts have since ruled that the warning must be "meaningful", so it is usually required that the suspect be asked if he understands his rights. Sometimes, firm answers of "yes" are required. Some departments and jurisdictions require that an officer ask "do you understand?" after every sentence in the warning. An arrestee's silence is not a waiver, but on June 1 2010, the Supreme Court ruled 5-4 that police are allowed to interrogate suspects who have not unambiguously invoked or waived their rights, and any statement given during questioning prior to invocation or waiving is admissible as evidence.

Pretty nasty, imo. Up till now police would chatter away in front of one who asserted his or her miranda rights, in order to provoke some speech. Topic could be baseball, politics or any subject that the police thought would get a rise out of the suspect.

Once the suspect uttered a word their miranda rights were waived until they affirmed them again.

This, of course, is just stacking the deck in favor of the government, are we surprised?

You (and evidently the Supreme Court) assume that everyone thinks clearly in a crisis. I for one don't think clearly when I'm rattled. Afterwards I think of the logical thing to do. But at that moment my brain is racing in a thousand directions. The obvious isn't always obvious at the time.

A suspect's Miranda right to counsel must be invoked "unambiguously." Davis v. United States, 512 U. S. 452,459. If the accused makes an "ambiguous or equivocal" statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused's intent, id., at 461-462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain si-lent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring aninterrogation to cease when either right is invoked. The unambigu-ous invocation requirement results in an objective inquiry that "avoid[s] difficulties of proof and . . . provide[s] guidance to officers" on how to proceed in the face of ambiguity. Davis, supra, at 458-459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the question-ing. He did neither. Pp. 8-10.

What are the police to after reading the Miranda warning? Must they stop questioning after the first second? After the first millisecond? After the first hour? The first workday? Who keeps time? What accuracy is required in the timing device?

How is one to know at what point a suspect has decided to remain silent as opposed to just formulating that decision?

Van Chester Thompkins, suspected in the 2000 shooting death of Samuel Morris outside a mall in Southfield, Mich., said little during a nearly three-hour interrogation, at the start of which he was read Miranda warnings.

Two hours and 45 minutes later, an officer asked, "Do you believe in God?" Thompkins said yes. The officer then asked, "Do you pray to God to forgive you for shooting that boy down?" Thompkins said "Yes."

Thompkins was convicted of murder and sentenced to life in prison without parole.

On appeal, he said he invoked his right to remain silent by refusing to answer questions for a long period of time and that his statements should not have been used at trial.

A U.S. appeals court agreed, rejecting Michigan officials' claim that Thompkins had waived his rights. U.S. Solicitor General Elena Kagan, representing the Obama administration and now a nominee for the court, sided with Michigan in its appeal. She said a suspect must clearly assert his right to silence.

Does anyone commenting here think that Thompkins was in fact innocent?
What proportion of people who are innocent of a given crime confess falsely when interrogated and because of those confessions are actually wrongfully convicted?
I would speculate that one in one thousand is a high number; the real number is likely much lower.

been an implied waiver of rights. The police have never had to ask if you want to answer questions, just if you understood your rights. Once you say you understood them, they can go right into questioning. It's been that way for many years. It's also been a rule that the request for a lawyer must be unambiguous. Ms. Sotomeyer's comment is counterintuitive.